7. The Health Service Commissioners Act 1993 (the law) says we cannot investigate a complaint where a person has, or had, the option to take legal action, unless we consider this is, or was, unreasonable in the circumstances. We have discussed this with Mrs E to understand her circumstances and the outcome she wants. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.
8. Mrs E complains the Trust failed to assess her symptoms appropriately when investigating postural tachycardia syndrome (PoTS). She says the Trust failed to provide her with a diagnosis for PoTS and refused to give her a follow up appointment for further assessment.
9. Mrs E says the failures caused delays in diagnosis of PoTS and therefore delays in treatment of her symptoms. This means she experienced pain and suffering for longer than she would have had a diagnosis been given. She tells us she was caused distress and anxiety which worsened her health condition and caused her unnecessary pain and suffering. It appears she could potentially pursue a clinical negligence claim
10. Mrs E tells us financial compensation is important to her for the impact this issue has had. We do not consider compensation in the same way as the courts. We look at the impact claimed failings had on the person affected, we do not consider impacts which might occur in the future. A court would be able to carefully consider and assess an appropriate amount of compensation for the impact Mrs E says the issues have had on her and will continue to have in the future. We would not want to disadvantage Mrs E by ‘under settling’ the claim when it would be more appropriate for her to go through a legal process.
11. Mrs E also requested an apology and service improvements as a resolution to this complaint. While this is not something a court would be able to require, often these resolutions are brought about as a biproduct of taking legal action. As the court could consider the broader impact Mrs E claims the failings had on her, but we cannot, it would be more appropriate for Mrs E to pursue legal action first, and then return to us if she has outstanding issues, or she could not achieve all of the outcomes she sought through the court.
12. We asked Mrs E if there were any barriers that would make it difficult for her to pursue legal action. Mrs E told us there are no barriers preventing her from exploring legal action. We consider Mrs E should contact a number of solicitors about his case and provide them with all of the evidence she has submitted to us. This would give the solicitor the best opportunity to fairly review any possible claim.
13. Often pursuing a legal remedy though the courts will involve having a dedicated solicitor/ legal professional on a case who has a vested interest in winning the case. That might mean Mrs E feels more supported through a legal route than through the complaints process with the Ombudsman who is impartial and unable to take sides. If there are any outstanding outcomes that cannot be achieved through the legal claim or Mrs E would like us to look at service improvements separately after legal action has concluded, she can bring the complaint back to us to consider further.
14. Given the above, we consider it is reasonable for Mrs E to explore achieving the financial remedy she is seeking through a legal route. If Mrs E is unable to pursue a legal claim, she can bring the complaint back to us to consider further but she should be mindful of our time limit.
15. We thank Mrs E for bringing her complaint to us for consideration.